Opinion
2010-1911 K C.
Decided July 8, 2011.
Appeal by plaintiffs from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered June 23, 2008. The order denied plaintiffs' motion (1) to vacate a prior order of the court (Lila J. Gold, J.), entered December 11, 2007, dismissing the complaint, (2) to restore the action to the trial calendar, and (3) upon restoration, for summary judgment on the issue of liability.
ORDERED that the order is affirmed, without costs.
PRESENT: STEINHARDT, J.P., GOLIA and RIOS, JJ.
This action to recover for personal injuries arising out of a motor vehicle accident which occurred in June 1999 was commenced in the Supreme Court, Kings County. In July 2000, it was transferred to the Civil Court, Kings County ( see CPLR 325 [d]), where it was marked off the trial calendar in April 2003. Plaintiffs' motion to restore the action to the trial calendar was denied in July 2005 due to the nonappearance of counsel. Plaintiffs' second motion to restore the action to the trial calendar was denied in July 2007 with leave to renew upon proper papers. In October 2007, defendant moved to restore the action to the trial calendar for the limited purpose of dismissing the complaint for failure to prosecute, pursuant to CPLR 3216. The motion was granted by order of the Civil Court, entered December 11, 2007, upon plaintiffs' default. Plaintiffs subsequently moved to vacate the December 11, 2007 order, to restore the action to the trial calendar, and, upon restoration, for summary judgment on the issue of liability.
In order to prevail on a motion to vacate an order entered upon default, a plaintiff is required to demonstrate both a reasonable excuse for its default and a meritorious cause of action ( see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Montague v Rivera , 50 AD3d 656 ). Although plaintiffs' counsel claimed that the default occurred because his office had not been served with defendant's motion to restore and dismiss, plaintiffs' counsel's mere denial of receipt of such motion papers, without more, was insufficient to rebut the presumption of proper mailing which attached to the affidavit of service annexed to defendant's motion papers ( see Kihl v Pfeffer, 94 NY2d 118; C H Import Export, Inc. v MNA Global, Inc. , 79 AD3d 784 ). Accordingly, plaintiffs failed to demonstrate a reasonable excuse for their default in opposing defendant's motion. Therefore, the Civil Court did not improvidently exercise its discretion in denying plaintiffs' motion.
Moreover, we note that plaintiffs were also required to demonstrate a meritorious cause of action, both substantively and procedurally, which included, in the posture of this case, advancing sufficient grounds to warrant restoration of their action to the trial calendar. Plaintiffs' counsel, in his affirmation, did not provide a reasonable explanation for the lengthy delays in seeking to restore the action to the calendar ( see Ferguson v Port Auth. of NY N.J. , 30 Misc 3d 131[A], 2011 NY Slip Op 50025[U] [App Term, 2d, 11th 13th Jud Dists 2011]; see also Feldman v Allstate Ins. Co., 192 Misc 2d 43 [App Term, 2d 11th Jud Dists 2002]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d 11th Jud Dists 2001]). Consequently, plaintiffs failed to demonstrate that they have a viable meritorious cause of action.
Accordingly, the order is affirmed.
Steinhardt, J.P., Golia and Rios, JJ., concur.